Section 25: will South Africans find their voice?

Last week, Parliament’s ad hoc committee charged with drafting an amendment to Section 25 of the Constitution to facilitate compensation-free expropriation heard from the institution’s legal counsel, as well as a number of legal experts on its proposed course of action.

Media commentary focused on the birds’-eye message, that there was no legal impediment to amending the constitution. There was reference to the participation of two luminaries – Justice Albie Sachs and Mr Mohammed Valli Moosa, both of whom had been intimately associated with the birthing of the constitution – backing this up.

They were probably correct. The constitution, any part of it, can be amended. Attempts by civil rights body Afriforum last year to challenge the process on the basis of deficiencies in the consulation efforts – these produced the recommendation for such an amendment – was never likely to succeed. At least not at this point.

But some of what was said echoes audibly for other reasons.

It might be worth noting that both Justice Sachs and Mr Moosa seemed to wriggle uncomfortably around some important matters. In Mr Moosa’s case, it was in the contention that Section 25 was really not the reason for the underperformance of land reform. Rather, such failures arose from ‘certain things’.

For Justice Sachs, it was the prospect of an overly rapid process – and, presumably, the poor formulation of the outcome that would arise. ‘When we drafted the constitution, it’s an entrenchment, it’s not easy for amendment for fair weather and bad weather. I have been alarmed that the amendment has to be done by the present Parliament,’ he remarked.

So while there were concerns about the motivation and process, both of them appeared at ease with the idea of an amendment to the Bill of Rights. Mr Moosa, for example, said: ‘I don’t think anybody should get nervous about having another look at it.’

This is a surprising sentiment, especially after he had argued that the nominal justification for the amendment – stagnant land reform – was without merit. For his part, Justice Sachs had appeared before the Constitutional Review Committee in June last year to argue that in its current form, Section 25 was a mandate for radical transformation and permitted the state fairly wide latitude to embark on Expropriation without Compensation.

Indeed, lying behind the drive that to amend Section 25 is an impulse that brings to mind comments made by Justice Sachs in his memorable work of three decades ago, Protecting Human Rights in a New South Africa. In it, he referred to a perspective on the idea of the Bill of Rights as ‘a reactionary device designed to preserve the interests of whites and to prevent any effective redistribution of wealth and power in South Africa.’ He went on to argue that, suitably understood and appropriately designed, a Bill of Rights would be a profoundly emancipatory instrument.

South Africa’s Constitution has served the country well: it seems reasonable to assume that Justice Sachs and Mr Moosa would be among those who would agree with this sentiment. That the country has not made the progress that was hoped for should not be laid at its door, but ascribed to ‘certain things’. And while Mr Moosa might have been reluctant to name them, they are far from absent in ordinary South Africans’ everyday conversations: state incapacity and indifference, skewed priorities in budgeting, corruption, questionable policies to name a few.

Constitutional arrangements, and particularly those elements that anchor the relationship between the state and those subject to it, are best understood as a set of rules or principles that establish the terms of politics and governance. Any changes contemplated should be thoroughly thought through, and undertaken for a clearly understood and rational purpose. There are clear grounds for trepidation when a document as important to social and political organisation as the constitution (the Chapter setting out the central rights of the country’s people no less) is meddled with for no proper purpose.

There is a strong odour of fraud and deception about this. By shifting the blame for South Africa’s land reform malaise onto the constitution, not only is its legitimacy damaged, but the real problems – plentifully attested to in a large body of research, including that sponsored by Parliament – ignored, and left unaddressed.

If nothing else, what is underway signals a willingness to trade the principles of constitutional governance for the seductions of venal politics and destructive ideology. What is at work is very sinister indeed.

It is also a threat to us all, with a precedent that the country will one day regret. Those who value South Africa’s future and a constitutional state would do well to keep this in mind. It would be of great service if they were to find their voices.

Terence Corrigan is a project manager at the Institute of Race Relations. Readers are invited to join the IRR, and to mandate it to speak on this issue, by sending an SMS to 32823 (SMSes cost R1, Ts and Cs apply).